A leading proponent of restorative justice, John Braithwaite, suggests that it can restore community harmony and build relationships through an overall feeling of justice having been done (Braithwaite, 2003b, p57). To this end, restorative justice espouses equal concern to offenders and victims, community involvement and the fostering of collaboration and reintegration as opposed to coercion and isolation (Zehr and Mika, 2003, p43). Reintegration is achieved by encouraging the offender to accept responsibility for their harmful actions and embrace accountability for putting things right. In this way, relationships between and across all parties concerned have the potential to rebuild and move forward. Secure social networks are particularly important when dealing with young offenders, as research shows that restorative family relationships promote less delinquency than those employing more punitive and/or stigmatizing approaches (Braithwaite, 2003b, p59).
It can be seen that restorative justice emerged from an alternative cultural experience but its principles are well appropriated by the UK criminal justice system. Part II of this report examines the application of restorative justice to young offenders and provides examples of it in action.
Part II: Restorative conferencing, young offenders and the community
As explained in Part I, restorative justice is a non-adversarial, community-based sanctioning process. There are four main models: circle sentencing, reparative probation boards, victim-offender mediation, and family group conferencing (FGC). The precise process in each model differs but each retains the key restorative principles. I examine each of these models in turn. However, as most restorative youth offender processing in the UK resembles most closely FGC, this report highlights this model.
Circle sentencing is used when an offender admits guilt and expresses a desire to change their behaviour. The process is open to the whole community for attendance. Emphasis is on the needs of the victim in terms of them choosing their support group, relating their feelings and deciding on the outcome. The primary outcomes are addressing the victim’s concerns through reparation, improvement of community strength, and prevention of future crimes (Bazemore and Griffiths, 2003, pp79, 83, 86). Restorative probation boards typically involve non-violent offenders who have been given probation. Preparation is minimal and community involvement is via a Community Reparative Board (CRB). Input from the victim is encouraged but currently is rare. Reparative probation aims to engage citizens in decision-making through the CRB to agree a reparative plan and find ways to prevent recidivism (Bazemore and Griffiths, 2003, pp79, 84-85). Victim-offender mediation is used as a probation option. Extensive preparation is key to successful mediation and ideally involves personal contacts with victim and offender to explain the process. However, minimal community involvement is permitted, with family and others rarely participating. The victim has maximum input and the session is managed so as to empower them and meet their individually-defined needs. The required primary outcomes are for the victim to feel satisfied with the process, for the offender to appreciate the harm of their actions, and for agreed reparation (Bazemore and Griffiths, 2003, pp79, 82-84).
Turning to family group conferencing, this model is used extensively throughout Australia and New Zealand. The latter employs FGC for nearly all juvenile offending and in Australia it is at the discretion of the police. Within the UK, FGC is gaining momentum. Schemes in London, Hampshire, Sheffield and Kent operate for young people aged from 10-17 years. Within the domain of child welfare, half of English social services departments operate FGC (Dignan and Marsh, 2003, pp107-108). Almost all young offender police cautions throughout Aylesbury and surrounds are administered by the Restorative Cautioning Unit (Young and Goolds, 2003, p94). With regard to the FGC process, all parties volunteer to participate. Preparation is moderate, usually consisting of telephone contact to victim and offender to explain the process. The independent convening coordinator, the offender and the victim identify participants, including family of the victim and offender in addition to social services and police personnel. The victim is encouraged to express their feelings about the offence and to input to the reparative plan. The offender is brought face-to-face with the impact of their behaviour, including the effect on their own family, and encouraged to be accountable for the harm caused. Primary outcomes are clarification of the facts of the offence, negotiating agreeing written plans for suitable reparation to the victim, and reintegration of the offender into their community (Bazemore and Griffiths, 2003, pp79, 83-86; Umbreit and Zehr, 2003, p72). FGC has benefits for the victim as well as the offender. The British Crime Survey showed that in instances of mugging or burglary more than two-thirds of victims do not seek imprisonment for their offender. Instead, the opportunity to relate the harm caused by the offence and ask questions of the offender is seen as more valuable and conducive to relinquishing lingering trauma (Wright, 2002, p63).
In most models of restorative justice, community involvement is important. However, for successful FGC it is vital. A UK governmental survey showed that more than half the young offenders questioned ranked the most significant consequence of being arrested as what their family and friends would think – more than five times the number who considered being arrested the most important factor (Braithwaite, 2003a, p393). In terms of the nature, role and extent of community involvement in FGC, ‘community’ has two meanings: (i) the victim or offender’s family or immediate social network, from which FGC participants are drawn; (ii) the wider community in which they live and/or work. The community of participants is active in drawing up an agreed plan for reparation of the harm done, with particular care taken to involve the offender. This is very important because research shows that when young people are actively included in FGC decisions and outcomes, they are more likely to complete the reparation programme and desist from offending; Home Office studies show that in these circumstances reoffending rates drop from 35% to only 3% (D315 CD3, 2005). In addition, involvement can help to prevent the young person employing techniques of neutralization to absolve themselves of blame for their actions (Sykes and Matza, 2003, pp231-234).
In terms of practical application, FGC has effected a decrease of up to 80% in court caseloads in New Zealand (Umbreit and Zehr, 2003, p70). Application of conferencing techniques has had similar benefits in the UK. The Milton Keynes retail theft initiative has been successful in terms of efficient use of police time. When caught shoplifting, young offenders undergo a restorative conference in which their families participate. Mediated by the Retail Theft Coordinator, the process includes the store manager speaking about the impact of theft on the shop and staff. There is also an educative element to the conference, with the police employing ‘protective behaviour’ techniques to teach the young person how to cope with bullying and/or peer pressure to offend (D315 CD3, 2005). Thames Valley Police have pioneered restorative cautions in the UK, and claim greater offender and victim satisfaction, restored victim confidence and sense of safety, and restored community relations. (Ludlow, 2003, p65; Wright, 2002, p62).
It is demonstrated that restorative justice has current application in the UK and that communities have potential for involvement. Part III of this report examines weaknesses and strengths of restorative justice and critiques the possibilities for improving community solidarity and social justice.
Part III: Critical issues
Restorative justice has a strong theoretical basis as well as practical application. However, it is an emerging field and so it is prudent to consider its drawbacks as well as potential benefits in relation to retributive modes of justice. Its founding principles broadly conceptualize issues of relationships and the power and control inherent in these. Therefore, the discussion following is located in this context. Additionally, consideration of how restorative justice strengthens communities and improves social justice will be spotlighted.
The principles of restorative justice extolling redefining crime as harm and greater empowerment of stakeholders largely concern sharing power. The benefits to this dispersal of control through restorative practices are seen, with young offenders more likely to complete reparation plans that they themselves have helped to negotiate. However, the other side of the coin is that young people may not speak up for themselves. Facing the victim in a roomful of adults – including their own parents �� may be difficult for young offenders and there is a danger that they will acquiesce to hasten FGC proceedings or restore their own status in the eyes of their parents (Braithwaite, 2003c, p160; Daly, 2003, p2007). This is compounded in referral orders due to the coercive element in attending FGC. In Aylesbury, there is the added pressure of police-led mediation sessions. This can further skew the power dynamic in the conference so that meaningful input from the young offender is not achieved; this may be why Youth Justice Boards argue that FGC works optimally when mediation is independent (Ashworth, 2003, pp167-168). Furthermore, the extended jurisdiction of the police in these circumstances is not counter-balanced with greater accountability on their part. A worry is that police discretion at channelling some offenders into restorative systems and some into punitive systems can set up a bifurcation of justice (Cuneen, 2003, pp183-184), and be a divisive tool based on issues of class, ethnicity, and gender; uneducated, unemployed young men of minority ethnic backgrounds already are over-represented in the criminal justice system (Box, 2003, p272). In addition, feminists argue that female young offenders often are treated more harshly than male, due to perceptions of young women’s deviancy if their behaviour transgresses normative assumptions (Alder, 2003, p118). Furthermore, there is the possibility of net-widening, perhaps seeing conferencing initiated for incidences and behaviour that may previously have been deemed too trivial for police or social services response, with the outcomes more severe than those handed down by a court (Cuneen, 2003, p189; Young and Goold, p97). These issues highlight that even a well-meaning justice system can create and sustain the very problems that it tries to address.
Possibly the greatest weakness of restorative justice is its reliance on relationships with the community to facilitate reintegration of the offender. Processing conflicts within a community is a valuable tool for engendering cohesion as well as providing opportunities to clarify the norms of acceptable behaviour, both of which are benefits of restorative justice and fit with the principle of strengthening relationships. However, ‘community’ is a hazy concept, with not everyone experiencing community in the same way. Often there is a gulf between the rhetoric of the community as conceptualized in restorative justice and the reality. For FGC and restorative justice to be successful, the community must be harmonious, supportive and inclusive. In reality, stable communities often are introspective and suspicious of change, relying on exclusivity and hierarchical relationships for self-preservation (Cuneen, 2003, p186). Dominant community members can hold sway, which raises questions over how the moral values of the community are shaped; there is a problem with who it is that decides what opinions, values and morals are worth representing (Crawford and Clear, 2003, p219). Class, gender and ethnicity divides may be inescapable (Ashworth, 2003, p170) and have the potential to further subordinate marginalized community members.
This all seems very negative about restorative practices but it’s not all doom and gloom. Studies show that reoffending rates are no higher following restorative justice than retributive, and often are lower. Furthermore, victims and offenders experience greater satisfaction with the process and outcomes of restorative justice compared with attending court (Ashworth, 2003, p175; Cuneen, 2003, p191; Daly, 2003, p208). Properly done, restorative practices have the potential to provide a bottom-up route to rejuvenating communities and reintegrating young offenders. Witness the successful community justice centre formulated and run by the New York community of Red Hook. The centre uses a form of FGC and takes a holistic approach to crime, housing and family justice to deal with offenders and tackle social inequalities. The result is a solid, interconnected community with less fear of crime and with respectful connections to the judiciary (Wavell, 2003, p66). Such community justice fits well with government policies on pluralization of responsibility, active citizenry and participation (Crawford and Clear, 2003, p225), or what might be called ‘government at a distance’. Within these strategies of responsibilization, all individuals being in a position to contribute to crime-prevention and harm-reduction strategies are encouraged to see that it is in their own best interests to do so. This is governed by hopes of creating environments promoting self-control, so that individuals police themselves and their own behaviour (Garland, 2003, pp460-463). This all illustrates that restorative justice has the potential to engage with the current political agenda, which is crucial for introducing new policy into wider public usage.
It can be seen that there are limits to how far restorative practices can truly strengthen communities. But what of social justice? Can improvements be effected in this sphere? For young offenders who have either dropped out of or been excluded from school, restorative practices may help them resume their education (Braithwaite, 2003c, p160). Coupled with the absence of a criminal record through being diverted from the court system, this could improve young offenders life chances and enhance the opportunity for them to reach their potential. However, the circumstances of their daily lives most likely will not change, and these may well still be conducive to the young person getting into trouble (Daly, 2003, p208). Unfortunately, restorative justice cannot change social problems or structural inequalities such as poor housing and homelessness, poverty/debt, lack of educational opportunities or unemployment, all of which impact on crime. For improvements in social justice for subordinated subjects, these issues must be addressed by specific social and economic policy, rather then being seen as an off-shoot of crime policy (Crawford and Clear, 2003, pp225-226). Harms must occur within or across communities before restorative justice can kick in. This is a somewhat topsy-turvy approach to crime and criminality that affirms a need for delineation between crime policy and those of wider social justice.
Conclusion
In conclusion, it can be seen that whilst restorative justice emerged from a different cultural experience, its underlying philosophies of adequate reparation for harms, restoration of dignity, individual empowerment and promotion of community cohesion appeal cross-culturally. Valid concerns have been expressed over issues of impartiality, independence and proportionality of outcome with FGC; every conference will be different due to differing participants. In running conferences, broader issues of power, rights and equity must be foregrounded. But it has been shown that those going through restorative justice – victims and offenders alike – are more satisfied with the process and perceptions of fairness than those going to court.
That there are problems with restorative justice’s required notions of community to carry out its programmes cannot be denied. It is recognised that ‘community’ is a contested concept and that there is not the homogeneity of constitution and individual experience assumed by restorative practices; communities will not all have equal resources to participate in such practices nor show equal interest in reintegrating offenders. Due to this, there are limits on how far restorative justice can impact on social cohesion and restoring communities. In addition, restorative practices in isolation do not have the capacity to effect social justice or alleviate major structural inequities. This requires focussed government strategies targetting the specific problems, and for issues such as poverty, homelessness and unemployment to be seen not as offshoots of criminal justice policy but as central political agenda items meriting attention in their own right.
A query was raised at the beginning of this report about where or even whether restorative justice could be located within the mainstream criminal justice system. It’s misleading to assume that restorative justice proponents desire a paradigm shift from retributive justice. There remains a need for a more punitive criminal justice system for serious offences because that is largely what the public want and expect. However, there is no need for a battle over moral values because the two justice modes can sit together well, provided that those involved in each system can see the benefits of the other, and that the will to work in partnership exists. The Chinese philosopher Confucius said thatwe cannot give up eating for fear of choking’. This same sentiment applies to restorative justice; we cannot dismiss it out of hand because we’re worried about or scared of the outcomes. There may be a gulf between how restorative justice actually is and how it could be, but the potential for enhanced feelings of fairness and justice, improved quality of life for individuals and communities, and the ‘visions of the possible put forward by its supporters is very much worth pursuing.
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